The opinion of the court was delivered by: Wolfson, District Judge
Petitioner Michael Blacknall, a prisoner currently confined at Mid-State Correctional Facility in Wrightstown, New Jersey, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The respondent is the warden Marie Dunlap-Pryce.
For the reasons stated herein, the Petition must be denied.
The relevant facts are set forth in the opinion of the Superior Court of New Jersey, Appellate Division.*fn1
Karen Esposito was the State's principal complaining witness. She testified that on May 26, 2007, she was walking through Lake Topanemus Park in the morning hours of the day when a man seated on a park bench called out to her. This man, later identified as defendant, asked Esposito to take his picture. When Esposito agreed, defendant handed her the camera, "took out $20 and said, 'Here's $20. Let's go over there,' and pointed towards the woods."
Because this request made her nervous, Esposito offered to take the picture where she was standing. According to Esposito, defendant responded by saying: "'No, no, no. Here's $20. Let's go over there', and pointed to the woods." Fearing for her safety, Esposito dropped the camera on defendant's lap; she then pretended that she saw her father's car, and told defendant that she would return immediately after she informed her father of her whereabouts. Esposito explained that defendant was insistent, however, stating: "No, no. We'll do it real quickly let's just do it now[,]" to which she responded "No, no. Wait here, I'll be right back." As she backed away, defendant asked for her name, to which she replied "Laura."
Esposito ran from the scene, eventually encountering a couple who were walking on a nearby pedestrian path. She asked them to remain with her as she called the police to report this incident. Officers James McNamara and Frank Mount responded to the park on a report of a woman being lured into the woods. The description of the individual given to police was a "black male, medium build, bald head, wearing blue shorts, sneakers and a blue tank top."
As he walked on the trail near Robertsville Road, McNamara saw a parked car. After he called in the vehicle's license plate number, McNamara continued walking until he came upon a man fitting Esposito's description sitting on a bench with his shorts partially down. McNamara noticed that the man had a blanket next to him.
At this point, defendant grabbed the blanket, stood up and turned away. McNamara drew his weapon and ordered defendant to drop the blanket; defendant was immediately handcuffed upon showing his hands. When the blanket fell to the ground, a part of defendant's genitals were exposed. With McNamara's assistance, defendant eventually pulled up his pants and sat down.
As these events unfolded, Officer Simonetti arrived at the scene in time to see "something get released from [defendant's] hand." This item was later identified as a "crack pipe" that tested positive for a trace amount of cocaine. Also found next to defendant were three pornographic magazines, a digital camera, a box of tissues, a lighter and a broken wire hanger that, according to McNamara, is used to clean crack pipes. The police also confirmed that the car parked nearby was registered to defendant.
Before advising defendant of his Miranda[fn2] rights, Simonetti asked defendant whether the items found nearby belonged to him, to which defendant responded "yes." Simonetti then asked defendant what he was doing at the park; defendant replied that he was just "hanging out."
Simonetti placed the items recovered in his patrol car for transportation to police headquarters. Despite its possible probative value, the lighter was discarded "because the jail [would not] take it."
Notwithstanding these preliminary pre-Miranda inquiries, the record shows that the arresting officers informed defendant of his rights under Miranda before transporting him to police headquarters. Once at headquarters, Simonetti again advised defendant of his Miranda rights, then asked defendant to initial and sign a standard Miranda waiver form at 11:19 a.m., approximately one hour from the point of arrest. The trial court found that defendant knowingly and voluntarily signed the waiver form.
Armed with defendant's written waiver of his rights under Miranda, Simonetti questioned defendant about his activities in the park that lead to his arrest. According to Simonetti, defendant said that "he was in the park playing with himself, masturbating. He was smoking crack cocaine and he was trying to get some female to take his picture."
Defendant called four witnesses. Dr. Chang Soo Kim, a board certified plastic surgeon, testified that on May 14, 2007, (twelve days before the incident leading to defendant's arrest) defendant was admitted to CentraState Medical Center in Freehold for traumatic injuries to the right side of his face. Dr. Kim described in detailed the nature of these injuries and the surgery performed to repair the physical damage.
Sidney Blacknall, defendant's father, testified that he borrowed his son's camera one week before his arrest. He developed the film and found three photographs depicting defendant. Dawn Dupre, a civilian dispatcher at the Freehold Police Department, testified that she was on duty when Esposito called to report the incident in the park. Finally, Defendant called a private investigator who photographed the area where the incident with Esposito, and defendants' subsequent encounter with the police, allegedly occurred. These pictures were admitted into evidence. (Superior Court of New Jersey, Appellate Division, Opinion of October 16, 2009, at 2-6.)
Petitioner was indicted in Monmouth County, New Jersey, on one count of third-degree attempted luring or enticing of an adult, N.J.S.A. 2C:13-7, and one count of third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1). Following a jury trial, he was convicted of the drug offense and of the petty disorderly-person offense of harassment, N.J.S.A. 2C:33-4, as a lesser-included offense of attempted luring or enticing. The Court sentenced Petitioner to a term of four years' imprisonment on the drug offense and to a concurrent thirty-day term on the petty disorderly person offense.
Prior to trial, Petitioner filed several motions. He moved for dismissal of the Indictment, on the grounds that police had deliberately destroyed the 9-1-1 tape, as well as other records, which motion was denied. The trial court found that the tape was not purposely destroyed and that, in any event, it did not contain evidence critical to Petitioner's defense. (Answer, Ex. 3.) In addition, Petitioner moved for suppression of evidence seized at the time of his arrest, on the grounds that the search was unlawful. The trial court found that the physical evidence was properly seized either as evidence in plain view or as incident to Petitioner's arrest. (Answer, Ex. 4.) Finally, Petitioner moved to suppress the statements he made to police, on the grounds that he was not given the appropriate Miranda warnings. The trial court suppressed the statements Petitioner made to police in the park, prior to being given the Miranda warnings, but denied the request to suppress the statements given at the police station following Petitioner's waiver of his Miranda rights. (Answer, Exs. 4, 5.) The trial court also denied Petitioner's motion for reconsideration of the suppression order. (Answer, Ex. 5.)
On October 16, 2009, the Appellate Division affirmed Petitioner's conviction and sentence. On January 28, 2010, the Supreme Court of New Jersey denied certification. This Petition followed. Respondents do not dispute that Petitioner has exhausted his state remedies and have answered on the merits. Petitioner has replied. This matter is, therefore, ready for disposition.
As amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254 now provides, in pertinent part:
(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
With respect to any claim adjudicated on the merits in state court proceedings, the writ shall not issue unless the adjudication of the claim
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determinated by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
A state court decision is "contrary to" Supreme Court precedent "if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases," or "if the state court confronts a set of facts that are materially indistinguishable from a decision of th[e] Court and nevertheless arrives at a result different from [the Court's] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000) (O'Connor, J., for the Court, Part II). A state court decision "involve[s] an unreasonable application" of federal law "if the state court identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case," and may involve an "unreasonable application" of federal law "if the state court either unreasonably extends a legal principle from [the Supreme Court's] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply," (although the Supreme Court expressly declined to decide the latter). Id. at 407-09. To be an "unreasonable application" of clearly established federal law, the state court's application must be objectively unreasonable. Id. at 409. In determining whether the state court's application of Supreme Court precedent was objectively unreasonable, a habeas court may consider the decisions of inferior federal courts. Matteo v. Superintendent, 171 F.3d 877, 890 (3d Cir. 1999).
Even a summary adjudication by the state court on the merits of a claim is entitled to § 2254(d) deference. Chadwick v. Janecka, 302 F.3d 107, 116 (3d Cir. 2002) (citing Weeks v. Angelone, 528 U.S. 225, 237 (2000)). With respect to claims presented to, but unadjudicated by, the state courts, however, a federal court may exercise pre-AEDPA independent judgment. See Hameen v. State of Delaware, 212 F.3d 226, 248 (3d Cir. 2000), cert. denied, 532 U.S. 924 (2001); Purnell v. Hendricks, 2000 WL 1523144, *6 n.4 (D.N.J. 2000). See also Schoenberger v. Russell, 290 F.3d 831, 842 (6th Cir. 2002) (Moore, J., concurring) (and cases discussed therein). In such instances, "the federal habeas court must conduct a de novo review over pure legal questions and mixed questions of law and fact, as a court would have done prior to the enactment of AEDPA." Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001) (citing McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999)). "However, § 2254(e)(1) still mandates that the state court's factual determinations are presumed correct unless rebutted by clear and convincing evidence." Simmons v. Beard, 581 F.3d q158, 165 (3d Cir. 2009).
The deference required by § 2254(d) applies without regard to whether the state court cites to Supreme Court or other federal caselaw, "as long as the reasoning of the state court does not contradict relevant Supreme Court precedent." Priester v. Vaughn, 382 F.3d 394, 398 (3d Cir. 2004) (citing Early v. Packer, 537 U.S. 3 (2002); Woodford v. Visciotti, 537 U.S. 19 (2002)).
Finally, a pro se pleading is held to less stringent standards than more formal pleadings drafted by lawyers. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). A pro se habeas petition and any supporting submissions must be construed liberally and with a measure of tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989); United States v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert. denied, 399 U.S. 912 (1970).
A. Fourth Amendment Search and Seizure Claim Petitioner asserts that the police wrongfully seized certain evidence at the time of his arrest, which they later introduced at trial. Petitioner asserts that the evidence was wrongfully seized as the police did not have probable cause at that time to believe that Petitioner had committed a crime. More specifically, prior to trial Petitioner moved to suppress the crack pipe and some pornographic magazines seized at the time of his arrest. The trial court denied the motion, finding that the materials were seized in plain view and as the result of a search incident to a lawful arrest.*fn2 Petitioner contends that the arrest was not lawful; hence, the crack pipe was not lawfully seized.
As far as the motion to suppress in this particular case, I see no legal basis to suppress those items. The police officers responded to a call when the officer came upon this particular defendant, he observed him with his pants partially down, his penis exposed, and he saw items in plain view on the ground near him, which he felt were contraband they could obviously see them, so. You know he was entitled to seize those items under the plain view exception.
And he was also entitled to seize them as a search incident to arrest his immediate area. The police officer was in a place that he was entitled to be. He wasn't particularly searching for any particular physical evidence at that particular time and the contraband that he saw, was obvious that it was contraband. So either plain view or search incident to arrest, the seizure of those items were justified. (Answer, Ex. 4, Tr. of Dec. 20, 2007, at 54-55.) The Appellate Division found that this allegation of error lacked sufficient merit to warrant discussion.
The Fourth Amendment to the U.S. Constitution, made applicable to the states through the Due Process Clause of the Fourteenth Amendment, see Mapp v. Ohio, 367 U.S. 643 (1961), provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Generally, speaking, evidence gained through a Fourth Amendment violation may not be used against a defendant at trial. See Mapp v. Ohio, 367 U.S. at 654-55; Weeks v. United States, 232 U.S. 383, 391-93 (1914). This "exclusionary rule" is a judicially-created remedy to safeguard Fourth Amendment rights by deterring police conduct that violates those rights. Stone v. Powell, 428 U.S. 465, 486 (1976).
In Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), the Supreme Court examined the nature of the exclusionary rule, which it characterized as a "judicially created means of effectuating the rights secured by the Fourth Amendment" and balanced its utility as a deterrent against the risk of excluding trustworthy evidence and thus "deflect[ing] the truthfinding process." Id. at 482, 490, 96 S.Ct. 3037. Finding that, as to collateral review, the costs of the exclusionary rule outweighed the benefits of its application the Court concluded that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Id. at 494, 96 S.Ct. 3037. While the federal courts are not thus deprived of jurisdiction to hear the claim, they are -- for prudential reasons --restricted in their application of the exclusionary rule. Id. at 494 n. 37, 96 S.Ct. 3037.
Marshall v. Hendricks, 307 F.3d 36, 81-82 (3d Cir. 2002), cert. denied, 538 U.S. 911 (2003). "Whether the petitioner actually took advantage of the opportunity is irrelevant; so long as the opportunity was available, the bar against raising the Fourth Amendment claims on collateral review applies." Jackson v. Diguglielmo, 2006 WL ...